Mgm Grand Paradise S.A. v Soong Fan on (BA-22NCC-91-05/2025)

This judgment concerns the Defendant’s application in Enclosure 14 seeking to strike out the Plaintiff’s Writ of Summons and Statement of Claim pursuant to Order 18 rule 19(1)(a), (b) and (d) of the Rules of Court 2012.

The Defendant contends that the Plaintiff’s claim is unenforceable because it arises from gambling activities allegedly conducted at the Plaintiff’s casino in Macau. According to the Defendant, the Plaintiff’s claim constitutes an attempt to enforce a gambling debt which is void and unenforceable under Malaysian law.

The Plaintiff disputes this characterisation. The Plaintiff maintains that the present action concerns repayment of monies advanced pursuant to a contractual credit facility granted to the Defendant under a Marker Signing Privileges Application / Agreement dated 15 June 2024.

After hearing the submissions of counsel and considering the affidavits filed in support of and in opposition to the application, this Court dismissed the Defendant’s application on 15 January 2026 with costs of RM5,000 to the Plaintiff.

The Defendant has since filed a Notice of Appeal dated 12 February 2026 against the whole of the said decision.

These are the grounds of my decision. Issue for Determination

The issue before this Court is whether the Plaintiff’s claim, as pleaded in the Statement of Claim, is so plainly unsustainable in law that it ought to be struck out pursuant to Order 18 rule 19 of the Rules of Court 2012.

In determining this issue, the Court must consider whether the Defendant has demonstrated that the Plaintiff’s claim is clearly barred by law or whether the matters raised by the Defendant give rise to issues which require determination after a full trial.

The Plaintiff, MGM Grand Paradise S.A., operates a casino business in Macau. The Plaintiff alleges that the Defendant executed a Marker Signing Privileges Application / Agreement dated 15 June 2024.

According to the Plaintiff, the said agreement enabled the Defendant to obtain a credit facility from the Plaintiff. The Plaintiff further alleges that the Defendant was granted a credit facility amounting to HKD 2,000,000.

It is the Plaintiff’s case that the Defendant utilised the credit facility but subsequently failed to repay the sums due. The Plaintiff therefore commenced the present action seeking recovery of the monies allegedly advanced pursuant to the said arrangement.

The Defendant disputes liability. According to the Defendant, the transactions relied upon by the Plaintiff arose from gambling activities conducted at the Plaintiff’s casino. On that basis, the Defendant contends that the claim is in substance an attempt to enforce a gambling debt.

(A) Affidavit Evidence

The Defendant’s application is supported by several affidavits affirmed by the Defendant. These include the affidavits filed in Enclosures 13, 16, 20 and 21. In those affidavits, the Defendant asserts that the transactions relied upon by the Plaintiff arose from gambling activities conducted at the Plaintiff’s casino in Macau.

The Defendant contends that the alleged debt forms part of gambling activities and therefore cannot be enforced in Malaysian courts.

The Plaintiff opposes the application through several affidavits filed in reply. These include the affidavits in Enclosures 17, 19, 23 and 25. In those affidavits, the Plaintiff asserts that the Defendant executed the Marker Signing Privileges Application/Agreement pursuant to which a credit facility amounting to HKD 2,000,000 was granted.

The Plaintiff further asserts that the Defendant utilised the credit facility but failed to repay the sums due.

The affidavit evidence therefore reveals competing versions regarding the nature of the transaction giving rise to the alleged obligation.

(B) Submissions of the Parties

The Defendant submits that the Plaintiff’s claim arises from gambling activities conducted at the Plaintiff’s casino in Macau. According to the Defendant, the Marker Signing Privileges Application relied upon by the Plaintiff merely formed part of the gambling arrangements between the parties.

The Defendant therefore contends that the alleged obligation is in substance a gambling debt which is unenforceable under Malaysian law.

The Defendant relies on sections 24 and 31 of the Contracts Act 1950 and the decision of the Federal Court in Dato Ting Ching Lee v Ting Siu Hua [2025] 2 MLJ 295.

The Plaintiff disputes the Defendant’s characterisation of the claim. In the Plaintiff’s submissions filed in Enclosures 29, 38 and 40, the Plaintiff maintains that the present action concerns repayment of monies advanced pursuant to a contractual credit facility.

According to the Plaintiff, the Defendant executed the Marker Signing Privileges Application / Agreement pursuant to which the Plaintiff granted the Defendant a credit facility amounting to

The Plaintiff submits that the Defendant utilised the credit facility but subsequently failed to repay the sums due.

(C) Legal Framework

The Defendant’s application is brought pursuant to Order 18 rule 19 of the Rules of Court 2012. In Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Federal Court emphasised that the power to strike out pleadings should only be exercised in clear and obvious cases where the claim is plainly unsustainable.

The Privy Council in Tractors Malaysia Bhd. v Tio Chee Hing [1975] 2 MLJ 1 cautioned that the court should not embark upon a trial of the issues at the interlocutory stage of a striking-out application.

Having carefully considered the pleadings, the affidavit evidence filed by the parties and the submissions of counsel, I now turn to the issues raised by the Defendant in support of the present application to strike out the Plaintiff’s claim, at subsections (a) to (h).

(A) Illegality and Sections 24 and 31 of the Contracts Act 1950

The principal argument advanced by the Defendant is that the Plaintiff’s claim is unenforceable on the ground of illegality. In support of this contention, reliance is placed on sections 24 and 31 of the Contracts Act 1950 (“Act 136”).

Section 24 provides that the consideration or object of an agreement is unlawful if it is forbidden by law or if the court regards it as immoral or opposed to public policy. Section 31 further provides that agreements by way of wager are void and that no suit shall be brought for recovering anything alleged to be won on any wager.

The Defendant therefore submits that the Plaintiff’s claim falls within the prohibition contained in these provisions because the alleged obligation arose from gambling activities conducted at the Plaintiff’s casino in Macau.

(B) The Decision in Dato Ting Ching Lee

The Defendant further relies on the decision of the Federal Court in Dato Ting Ching Lee (supra), where the Federal Court reaffirmed the principle that wagering contracts and gambling debts are generally unenforceable under Malaysian law.

There is no dispute regarding the principle affirmed in that decision. Malaysian courts have consistently declined to enforce wagering contracts on the ground that such agreements are contrary to public policy.

However, the applicability of that principle depends upon the true nature of the transaction giving rise to the alleged obligation.

(C) Lex Fori

The Defendant further submits that even if the gambling activities relied upon by the Plaintiff took place in Macau, the enforceability of the alleged obligation must nevertheless be determined in accordance with Malaysian law as the law of the forum (lex fori).

While Malaysian law governs the question of enforceability as the law of the forum, the Court must first determine the true nature of the transaction giving rise to the alleged obligation.

If the obligation constitutes a wagering agreement within the meaning of section 31 of Act 136, the Defendant’s argument may ultimately succeed. On the other hand, if the obligation arises from a contractual credit facility granted to the Defendant, the Plaintiff’s claim may be enforceable as a debt.

The determination of this issue therefore depends upon the proper characterisation of the transaction giving rise to the alleged obligation.

(D) Nature of the Marker Signing Privileges Application

The Defendant submits that the Marker Signing Privileges Application relied upon by the Plaintiff is merely a device used by casinos to facilitate gambling activities.

The Plaintiff disputes this characterisation and maintains that the Defendant executed a contractual arrangement pursuant to which the Plaintiff granted the Defendant a credit facility amounting to HKD 2,000,000.

According to the Plaintiff, the Defendant utilised the credit facility but subsequently failed to repay the sums due.

The competing positions taken by the parties therefore concern the true nature of the underlying transaction.

At this interlocutory stage, the Court is not in a position to determine conclusively which of these competing characterisations is correct.

The determination of that issue requires the Court to examine the terms of the Marker Signing Privileges Application / Agreement and the circumstances in which the alleged credit facility was granted. These matters necessarily involve consideration of the evidence.

(E) Whether the Plaintiff’s Claim Discloses a Cause of Action

The Plaintiff’s Statement of Claim is framed as a claim for repayment of monies advanced pursuant to a contractual credit facility.

If the Plaintiff succeeds in proving the facts pleaded in the Statement of Claim, the Plaintiff may establish a contractual claim for repayment of the monies allegedly advanced.

On the face of the pleadings, therefore, the Plaintiff’s claim cannot be said to be plainly unsustainable.

(F) Comparison of the Affidavit Evidence

It is also necessary to consider the affidavit evidence filed by the parties in support of their respective positions.

The Defendant’s affidavits filed in Enclosures 13, 16, 20 and 21 asserts that the alleged debt arose from gambling activities conducted at the Plaintiff’s casino and that the Marker Signing Privileges Application relied upon by the Plaintiff merely formed part of those gambling activities.

The Plaintiff’s affidavits filed in Enclosures 17, 19, 23 and 25 disputes that assertion. The Plaintiff maintains that the Defendant executed a contractual arrangement pursuant to which the Plaintiff granted the Defendant a credit facility amounting to HKD 2,000,000 and that the Defendant subsequently failed to repay the sums due.

The affidavit evidence therefore reveals a clear dispute between the parties regarding the nature of the transaction giving rise to the alleged obligation.

(G) Authorities on Wagering Contracts and Credit Arrangements

Counsel also referred to Pet Far Eastern (M) Sdn Bhd v Tay Young Huat & Ors [1999] 5 MLJ 558, which recognises the prohibition against enforcement of wagering contracts under section 31 of Act 136.

At the same time, the Plaintiff relies on foreign authorities recognising that gaming credit arrangements may give rise to enforceable contractual obligations depending on the governing law of the transaction.

Reference is made to Star City Pty Ltd v Tan Hong Woon [2002] SGHC 36 and Wynn Resorts (Macau) SA v Mong Henry [2010] HKEC 227, where courts recognised that casino credit facilities may constitute enforceable contractual obligations distinct from wagering agreements.

While these authorities arise from foreign jurisdictions, they illustrate the distinction between a wagering agreement and a contractual obligation arising from a credit facility extended by a casino operator.

(H) Existence of Triable Issues

The dispute between the parties concerns the proper characterisation of the transaction giving rise to the alleged obligation.

If the transaction constitutes a wagering agreement within the meaning of section 31 of Act 136, the Defendant’s argument may ultimately succeed.

If it constitutes a contractual credit arrangement which gives rise to an independent obligation to repay monies advanced, the Plaintiff’s claim may be enforceable.

The determination of that issue requires examination of the evidence relating to the execution of the Marker Signing Privileges Application / Agreement and the circumstances in which the alleged credit facility was granted.

These matters cannot properly be resolved solely on the basis of affidavit evidence.

In those circumstances, the Court is satisfied that the matters raised by the Defendant give rise to triable issues which ought properly to be determined after the evidence has been fully adduced at trial.

Having considered the pleadings, the affidavit evidence and the submissions of counsel, I am satisfied that the Defendant’s contention that the Plaintiff’s claim is unenforceable on the ground of illegality depends upon the proper characterisation of the transaction giving rise to the alleged obligation.

That issue cannot properly be determined at the interlocutory stage of a striking-out application.

Accordingly, the Court cannot conclude that the Plaintiff’s claim is plainly unsustainable in law.

For the reasons stated above, the Court is satisfied that the Defendant has failed to establish that the Plaintiff’s claim is plainly unsustainable in law.

This is therefore not an appropriate case for the Court to exercise its jurisdiction under Order 18 rule 19 of the Rules of Court 2012.

The Defendant’s application in Enclosure 14 is dismissed.

Costs of RM5,000 are awarded to the Plaintiff, subject to allocator. Dated 8 April 2026 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Reuben Choong Bi Qian & Richard Lee Wen Gee (Messrs Mathews Hun Lachimanan) For the Defendant : Lam Mei Yee & Woon Ling Li (Messrs S L Goon & Partners)